Dermot Ahern (Louth, Fianna Fail)

On Report Stage I introduced a list of amendments which set out how the provisions relating to the receiver would operate in practice and how receivers would be appointed. The purpose of these amendments is to put on a statutory basis the necessary measures to ensure that the fees and expenses which receivers can claim are open, transparent and reasonable.

Seanad amendment No.32 removes the requirements relating to vouching of expenses. Instead of placing the time consuming burden of vouching every expense on the Courts Service, I am putting the onus on receivers to maintain a record of their expenses and fees which will be forwarded to the Courts Service at regular intervals.

In regard to Seanad amendment No. 33, section 15(4) obliges a receiver to perform his or her functions subject to directions or conditions specified in the recovery order, including any directions or conditions in respect of the receiver paying amounts received by him or her into the court. This amendment allows the receiver to apply to the court for directions relating to the performance of his or her functions. Receivers will have to contend with a variety of circumstances while performing their functions, ranging from recovering small to very large amounts, and it is wise to give them power to apply to the court for directions in specific cases.

Seanad amendment No. 34 sets out what will happen if the receiver recovers and sells property of greater value than the amount of the fine or the unpaid part thereof.

It repeats the provisions under which the receiver will be obliged to return to the offender as much of the proceeds of the sale as exceeds the fine or the unpaid part of it. For the purposes of this provision, the normal definition of fine is amended to include the fees of the receiver and the expenses reasonably incurred by him or her. This is because when a fine is imposed, it will not at that stage be known what the exact amount of the receiver's expenses will be and they will thus not form part of the fine. This also entails the deletion of the current definition of fine in amendment No. 38 for the purpose of this section. The definition of fine in section 12 will apply to the section.

Seanad amendment No. 35 deals with the making of a fees order by the Minister for Justice, Equality and Law Reform with the consent of the Minister for Finance. I envisage that the fees order made under this provision will operate in a similar manner to the fees orders for Revenue sheriffs, the work the receivers will perform being essentially the same as that of the sheriffs.

Seanad amendment No. 37 obliges the receiver to make and maintain a written record of the fees deducted and the expenses incurred and deducted from the sum recovered or the proceeds of any sale of property pursuant to a recovery order. At least every six months the receiver will give the Courts Service a written record of fees and expenses, and the making of any false or misleading entry in the record will be a criminal offence. I decided to create this offence, with severe penalties, because where false and misleading information is given there is potential for considerable amounts of money to be involved. In addition, I envisage that the contract between the receiver and the Courts Service will be drawn up in such a way that in such circumstances, the contract will immediately be terminated.

Seanad amendments Nos. 36 and 39 are largely drafting amendments. Amendment No. 36 deletes section 15(8), while amendment No. 39 inserts a new section providing for the addition of the receiver's fees to the moneys that can be subtracted from the moneys to be paid into the Exchequer as a result of the appointment of the receiver. These amendments complete the scheme proposed for the operation of the receiver provisions. In the course of the debates on the legislation, and particularly on Report Stage, the role of the receiver was revised and brought more centrally into how the default provisions will work. The revised role of the receiver made it important that the fees and expenses provisions be fully thought through and included in the Bill rather than left for administrative action or rules of court. That will facilitate the smoother operation of the receiver provisions as well as obliging receivers to maintain proper records of their expenses.

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